State v. Prude

76 Miss. 543

• Court: Mississippi Supreme Court
• Decided: November 15, 1898
• Status: Published

Opinion

Terral, J.,

delivered the opinion of the court.

The appellee was indicted for that she “did feloniously kill and sky an unborn quick child of said Emma Prude,” etc. The defendant demurred to the indictment. The court sustained the demurrer and the state appeals.

This is not a good indictment at common law, for by the common law, “An infant in the mother’s womb, not being in rerum natura, is not considered as a person who can be killed within the description of murder, and, therefore, if a woman, being quick or great with child, take any potion to cause an abortion, or if another give her any such potion, or if a person strike her, whereby the child within her is killed, it is not murder or manslaughter. ’ ’ 3 Russell on Crimes (International ed.), 6; Wharton on Horn. (2d ed.), sec. 303; Wharton’s Am. Grim. Law (6th ed.), sec. 942; McClain on Crim. Law, sec. 294; Abams v. Foshee, 66 Am. Dec., 91, note.

The indictment, obviously, is not drawn under § 1157, code 1892, because the administration of some medicine, drug or substance, or the use of some instrument, with intent to destroy the unborn quick child, is not alleged therein, and because the taking of any substance or the use of any instrument by the pregnant woman herself with intent to destroy the child in her womb is not covered by said section. Bishop on Stat. Cr. (2d ed.), secs. 747, 749.

Affirmed.